Nathan's Case — Possess Child Pornography — Dismissed

Between
Her Majesty the Queen, and
Nathan L.

Ontario Court of Justice
Newmarket, Ontario
Judge Blouin

Dismissed:  28 March 2006
(13 paras.)

¶ 1     Blouin J. (orally):  Mr. Enright.

¶ 2     MR. ENRIGHT:  Thank you, Your Honour. Returning to the Nathan L. case, which we commenced yesterday.

¶ 3     THE COURT:  Okay.

¶ 4     MR. ENRIGHT:  After some consideration we have decided, Mr. Moull and I, that we are not going to examine the affiant, Detective Constable L. Nor are we going to call any evidence on the motion. As a result, I am going to withdraw our application to tender the evidence that was acquired through the two search warrants, which has been — really, the focal point of the hearing thus far in the case. The Crown's case rests entirely on the seizure of materials from the residence at 54 Lara Drive. Accordingly, I will, in a few minutes, ask the Court to acquit the applicant, since I will not be calling further evidence. What is really factored into this decision is this. There is, of course, a continuing duty on Crown Counsel to continually assess reasonable prospect of conviction, even when a case begins. Usually that is done well in advance, as it should be, but sometimes things change in the course — the dynamics of a hearing, which causes the Crown to have a second and third look at it. That is something that Mr. Moull and I did diligently over the lunch hour today.

¶ 5     I have concluded that there no longer exists a reasonable prospect of conviction, based essentially on the testimony of the affiant, during this application. As you know, and as Mr. Penney knows, apart from the affiant's testimony, there were issues surrounding the two warrants. The majority of the applicant's alleged shortcomings, with the informations backing the two search warrants, we were quite prepared — we, the Crown, were quite prepared — to meet with arguments and case law to suggest essentially, as Mr. Moull, I think, made it fairly clear in his response to the notice of application, that natural common sense inferences could be drawn from established facts — established facts through the Canadian and American investigation. Natural common sense inferences could be drawn the issuing justice who, of course, is charged with making an independent judicial decision, as to whether or not the grounds for a search warrant exist, and whether or not permission ought to be given to the peace officer to seize personal property. That has been, and continues to be, our position.

¶ 6     There was another issue. The issue, as you learned, the later return of the first warrant. It was not returned to the Justice of the Peace, as is required, "as soon as practicable." And again, in our submission, that lapse was not fatal to the admission of the evidence gathered from the bank regarding the credit card activities. That would have been our argument probably tomorrow, when we got to that stage.

¶ 7     What has changed is this. This morning in her testimony, Detective Constable L. essentially disavowed some of the necessary bases premising any reasonable probable grounds. Now, while I personally do not agree with her answers in this regard, it obviously does go some distance in making out the defence case here on the application. And, so, what Mr. Moull and I struggled with over the lunch hour, and earlier this morning during the break, was whether or not we ought to attempt to rehabilitate Detective Constable L's answers by engaging in a cross-examination of our — on our own, which of course we would be permitted to do. But I adjudged, rightly or wrongly, that by suggesting questions to Detective Constable L., as to what perhaps the better answer would have been, might not be appropriate under the circumstances of this case. That is the decision I have made, and that is the decision I am going to live with.

¶ 8     So, in the final analysis, this is a case where after some difficult consideration, I have concluded that we no longer have a reasonable prospect of conviction based on the likely event that the Court, in making its ruling on a section 8 application, would exclude the evidence. About six thousand images of what the Crown alleges are child pornography were actually seized from the evidence — sorry, from the residence of 54 Lara Drive. Now, in fairness to Nathan L., those six thousand images were really a "drop in the bucket," because there were hundreds of thousands of other images, which would be considered adult pornography, or legal pornography. I know that had the case proceeded on the merits, his defence on the merits would have been that there was such a small percentage of images of what could constitute child pornography, that it would affect his mens rea — that perhaps he was not so diligent in downloading these images, that he didn't realize what he was downloading. And, as we all know from the evidence, he made but one visit back in May of 2003. He made but one visit to this child porn site. There is no evidence here that he repeatedly went back to the site, and so it would have factored, I suppose, in his defence on the merits that it was but one occasion, and he didn't realize what he was downloading.

¶ 9     That, of course, is really all conjecture at this point, because we are not going to go that far. But I thought I should put on the record some appropriate reasons as to why I am going to bring the prosecution to a close now, because a lot of work has been done by the applicant, and by Mr. Moull, my colleague, in terms of responding to these issues. I know the Court has only had a couple of days to come up to speed, but you have come up to speed, on the materials too. It is a difficult decision that you would have had to make, but frankly, given the vive voce testimony of Detective Constable L. this morning, I think the defence could not have had a more successful cross-examination. That is really what causes me, at this stage, to intercede and conclude that there no longer exists a reasonable prospect of conviction. So, having put all of those reasons on the record, I will formally announce that we are calling no further evidence on the trial proper in this case, and obviously, I will invite the Court to find the defendant "not guilty."

¶ 10     THE COURT:  All right. Thank you, Mr. Enright. Mr. Nathan L., would you stand up, please. I have heard a lot about this case — a lot more than I knew even five minutes ago, but I think one thing is clear in this particular case, that Mr. Enright is doing what a Crown should do, which is consider and keep considering a reasonable prospect of conviction. When we look at what the evidence is in this case, it is clear to me that all of the things that he touched upon were things that I had concerns with, as well. I am also heartened to hear what the defence may well have been in this case, because I think that is something that the Crown needs to consider, as well, when you are looking at the reasonable prospect of conviction. I too was concerned. I think Mr. Enright's characterization of Detective Constable L.'s evidence in cross-examination — there could hardly have been a more successful cross-examination. Not to say that it was any way other than — that the answers that were ultimately given, were beneficial to the defence position in this case.

¶ 11     So, that is what is left after all of the evidence was heard with respect to the Crown's case and to their position with respect to this search. So, I am going to acquit you, of course, because I must. I have been asked to, and the evidence does not support a conviction. You will be found "not guilty" of the offence before the Court. Thank you very much. Thank you, Mr. Penney, for your very thorough job. Thank you Mr. Enright and Mr. Moull for a very thoughtful prosecution.

¶ 12     MR. ENRIGHT:  Thank you very much, Your Honour.

¶ 13     MR. PENNEY:  Thank you, Your Honour.

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